Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court's Use of Transnational Law to Interpret Domestic Doctrine

46 Pages Posted: 27 Feb 2014 Last revised: 16 Jun 2017

See all articles by Ryan C. Black

Ryan C. Black

Michigan State University - Department of Political Science

Ryan J. Owens

University of Wisconsin - Madison - Department of Political Science

Daniel Walters

University of Pennsylvania Law School; University of Wisconsin - Madison

Jennifer Williams

University of Wisconsin - Madison

Date Written: 2014

Abstract

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical work on the conditions under which Supreme Court Justices actually use transnational law. Is it in fact the case that only liberal Justices employ transnational law — or do conservatives as well? In addition, there is little work on which countries Justices cite when they do use transnational law. Do they cherry pick whichever country works best in the given case, or is there a lower bound of plausibility when selecting countries to examine and cite?

The authors provide the most systematic empirical exploration of the Court’s use of transnational law to date. Their results challenge conventional wisdom and prove to upend the existing debates over transnational law. The data show that Justices are more likely to reference transnational law when they exercise judicial review and when they overturn precedent, which likely explains much of the controversy around the practice. Importantly, the data show, further, that all Justices cite transnational law. Liberals cite transnational law when they render liberal decisions, and conservatives cite transnational law when they render conservative decisions. Liberals and conservatives alike employ such law because they are both ideologically conscious, strategic judicial actors who seek to support their decisions with as much persuasive material as possible. Finally, the results suggest that Justices cite countries with regard to their political and legal characteristics. They cite what the public would consider to be among the most legitimate countries across the globe. In other words, on the whole, Justices seem to borrow from countries most like the U.S. Whether these results are good or bad is unclear; what is clear, however, is that the normative debate over using transnational law must take a turn and address the authors’ findings.

Keywords: Foreign Law; Jurisprudence; Judicial Politics; Empirical Legal Studies

Suggested Citation

Black, Ryan C. and Owens, Ryan J. and Walters, Daniel and Williams, Jennifer, Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court's Use of Transnational Law to Interpret Domestic Doctrine (2014). Georgetown Law Journal, Vol. 103, pg. 1, 2014; U of Penn Law School, Public Law Research Paper No. 14-9. Available at SSRN: https://ssrn.com/abstract=2401116

Ryan C. Black

Michigan State University - Department of Political Science ( email )

East Lansing, MI 48824
United States

HOME PAGE: http://ryancblack.org

Ryan J. Owens

University of Wisconsin - Madison - Department of Political Science ( email )

406 North Hall
1050 Bascom Mall
Madison, WI 53706
United States
608-263-2279 (Phone)

HOME PAGE: http://law.wisc.edu/profiles/rjowens@wisc.edu

Daniel Walters (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
815-543-6266 (Phone)

HOME PAGE: http://https://www.law.upenn.edu/cf/faculty/danwalt/

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

Jennifer Williams

University of Wisconsin - Madison ( email )

716 Langdon Street
Madison, WI 53706-1481
United States

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